Do Email Preservation Letters Violate the 4th Amendment?

by: Ryan Scott • October 31, 2016 • no comments

Discussion here. Orin Kerr is always invaluable on these types of issues. Key paragraphs:

First, when providers preserve accounts in response to letters, they are state actors for Fourth Amendment purposes. They are acting pursuant to a law that says that they “shall take all necessary steps to preserve records” in response to the notice. See In the Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 829 F.3d 197 (2d Cir. 2016) (noting in the SCA context that “[w]hen the government compels a private party to assist it in conducting a search or seizure, the private party becomes an agent of the government” under the Fourth Amendment).

Second, when providers act pursuant to preservation letters, they generally run off a new copy of the relevant records and store them separately pending possible legal process. In my view, making a new copy of files for separate use “seizes” any records that are protected by the Fourth Amendment. See Orin Kerr, “Fourth Amendment Seizures of Computer Data,”119 Yale L.J. 700 (2010). The contents of emails are clearly protected by the Fourth Amendment. See United States v. Warshak, 631 F.3d 266, 285–88 (6th Cir. 2010). As a result, compliance with the issuance of a 2703(f) letter should ordinarily trigger a Fourth Amendment seizure. When emails are seized and held pending the prospect of future legal process, I would think that is a continuing seizure of the emails for the period that the emails are held on the government’s behalf.